dissenting. — To decree that pecuniary legacies payable to the legatees named in item 3 of the will abate pro rata upon insufficiency of assets violates the unambiguous direction of testatrix in item 9 that such legacies are to be paid in full.
Rules of construction and presumptions as to testamentary intent must always give way to an expressed intent. The sole purpose of rules of construction is to ascertain and effectuate the intent of testator, not as it may have existed in his mind, not as he may have intended to express it, but as it is actually expressed in the language of the will. In expounding a will, it is not what the testator meant but what is the meaning of his words: Ludwick’s Estate, 269 Pa. 365, 371.
The rules of construction — statutory and judicial — are correctly and accurately recited by the auditing judge. They are to the effect that, in the absence of testamentary direction, pecuniary legacies abate pro rata upon an insufficiency of assets; that there is a presumption against preference which cannot be repelled by an ambiguous expression and the intent to the contrary must be clear. I have no quarrel with such rules, but maintain that they can only be applied in aid of testamentary intention where the direction of the testator is *134ambiguous. Here testator’s direction is clear and unambiguous, and therefore the above rules need not and ought not to be applied.
The direction of item 9 is clear and unequivocal. It reads as follows: “I direct that all bequests made by me in the third paragraph of this my will be paid to the individual legatees named in full.” The next, and only other sentence in the item, is: “All taxes incident to said bequests, whether State or Federal, and of whatever nature, I direct to be paid out of my residuary estate before the principal sum forming the residuary is distributed.” Thus in the first sentence testatrix directs payment in full to individual legatees. In the second sentence testatrix gives those legatees a bequest to the amount of the inheritance taxes.
The auditing judge and the majority are of opinion that these two clauses read together are an ambiguous expression of intent. They decide what the testatrix really intended to do was to pass the legacies free of tax and nothing more. With this legal conclusion I disagree.
The reasoning depended upon to raise the ambiguity is highly artificial and strained. Apparently, punctuation is partially relied upon. The auditing judge says that if a comma had been used after the words “in full” (but which was not in fact so used) his interpretation would have been unquestionably correct. I agree that mere punctuation is a most fallible standard by which to interpret a writing.
As I understand the ruling of the auditing judge, his conclusion is largely predicated upon the theory that testatrix manifestly supposed that her estate would be sufficiently ample to pay all her legacies. This because she refers twice to her residuary estate as chargeable with taxes and because she disposes of a residuary estate. From these facts the auditing judge concludes that item 9 necessarily must refer exclusively to exempting the legacies from tax and nothing else. This conclusion, in my opinion, is fallacious. True, she may have hoped, or even expected, her estate to be ample for all purposes, but I see nothing incongruous in a testamentary provision — in plain language — that certain legatees shall be paid in full. Why should we exclude the possibility that perhaps the testatrix did have a thought of a possible deficiency. The will was executed on April 11, 1930, six months after certain very definite recessions in values of securities following October 1929, an indelible period in most memories. Testatrix died on October 27,1931, while financial conditions still remained in upheaval. How, therefore, can he say, when testatrix plainly stipulated that her individual legatees be paid in full, that all she meant was a tax exemption?
But the chief theory of ambiguity found by the auditing judge is that both sentences should be read as one, or together. Eliminating the question of punctuation, what these two sentences are held to do is to “pay the legacies in full, after the tax is paid from the residuary estate”. Or, “pay the legacies free of tax”. Now if this is all the testatrix intended to do it seems very curious to me that she would not have repeated what she had already done in item 2, where she exempted the specific legacies from inheritance tax. Furthermore, if the conclusion of the auditing judge is adopted, the first sentence respecting payment in full becomes pure surplusage. To exempt the legacies from tax all she needed to have done was to employ the second sentence, as she had previously done in the second item. Certainly we can attribute no testamentary intent to employ superfluous or meaningless words. All words must be given their ordinary and proper meaning if at all possible: Irwin’s Estate, 14 D. & C. 673, affirmed in 304 Pa. 200.
What this decision really does is to create, judicially, an ambiguity in the face of a plain testamentary direction. It discovers an implied intent not to do what testatrix directed, because she set up a residuary clause, provided for pay*135ment of taxes thereout and disposed of the residuary estate; the conclusion is aided by reference to nonexistent punctuation and by reading together two sentences as applying to one subject matter- — although in fact referring to two— and thereby has made one sentence superfluous, if not meaningless. After thus artificially (as I believe) establishing an ambiguity, the remaining steps are quite logical, and would be proper if the foundation is sound. The auditing judge then superimposes upon this foundation, so laid upon implied intention, perfectly sound canons of construction and presumptions and reaches a result to equalize all legacies. All of this is in the face of plain and unambiguous directions that her individual legatees be paid in full.
If it becomes necessary to apply rules of construction — which it should not be where there is express direction — why not apply by analogy at least that rule which favors the blood of a testator rather than a stranger? 1 Page on Wills, -section 817. The record is not clear as to the relationship of all the individual legatees. But the auditing judge says 3 are cousins and 1 is a granddaughter of -a cousin. True it is that this relationship is remote, but nevertheless, it is manifest that these 12 individual legatees were the nearest and dearest to her. The 12 legacies total $36,000. Seven of the 12 are given very substantial specific bequests, and two of them take between them about seven eighths in release of the specific legacies totaling over $8,000. These same two take between them one half of the residuary estate. In directing that these 12 individuals be paid their legacies in full, certainly testatrix — an unmarried woman without issue— clearly intended to prefer her “nearest and dearest” over four pecuniary legatees, charitable corporations: a church, the Salvation Army, a home and a society for prevention of cruelty to animals.
For the foregoing reasons, I would prefer to attribute testatrix’s direction to pay her individual legatees mentioned in item 3 in full its normal, usual and natural meaning, and without resorting to rules of construction and implied intention. When testatrix directed payment in full I would do precisely that.